Texas' top prosecutor: Drug source can be secret

Texas' top prosecutor: Drug source can be secret

Friday, May 30, 2014

DALLAS (AP) — Texas law enforcement officials are refusing to say what threats were behind a key letter that led the state attorney general to reverse his long-held position that the identity of Texas' execution drug provider should be made public.

The Texas Department of Public Safety's one-page letter was cited Thursday by the Texas Attorney General's Office, which ruled state prison officials could keep its provider a secret. On Friday, the Department of Public Safety called any details about threats "law enforcement sensitive information," refusing to say if any pharmacies were in danger or what the agency was doing to investigate.

Anti-death penalty advocates have accused Texas and other states of trumping up threats to avoid disclosing their providers. So far, state and local law enforcement agencies have said little publicly about why they feel pharmacies are in danger.

The state prison system has long argued that safety concerns required it to keep suppliers' information private. Three times, Attorney General Greg Abbott's office refused the Texas Department of Criminal Justice's requests, saying the agency hadn't done enough to prove a threat.

In one of those opinions, issued two years ago, the office said that "while we acknowledge the department's concerns, we find you have not established disclosure of the responsive information would create a substantial threat of physical harm to any individual."

But in Thursday's opinion reversing that position, Abbott's office cited Department of Public Safety director Steven McCraw's letter as proof that law enforcement believed a threat existed.

TDCJ requested the March 7 letter from McCraw, DPS spokesman Tom Vinger said. The letter says there were threats made against the Woodlands Compounding Pharmacy, a Houston-area facility that was identified in a previous open-records request as the state supplier.

"Pharmacies by design are easily accessible to the public and present a soft target to violent attacks," McCraw said in his letter.

The letter was key in the attorney general's reversal. Its Thursday opinion says it had to defer to DPS, "the law enforcement experts charged with assessing threats to public safety."

Abbott and McCraw declined to be interviewed Friday. Jason Clark, a TDCJ spokesman, did not return messages seeking comment Friday.

Vinger told The Associated Press in April that he was unaware of any investigations of threats against that pharmacy, and the local sheriff's office responsible for the pharmacy said it had not investigated any threats there, either. On Friday, Vinger declined to comment on whether DPS was aware of any threats or had conducted any investigation, saying in an email that it was "law enforcement sensitive information."

Unlike some other states arguing in court about drug secrecy, Texas law doesn't specifically say whether prison officials must disclose where they buy lethal injection drugs.

Death penalty states have been scrambling to find new sources of drugs after several drugmakers, including many based in Europe, refused to sell drugs for use in lethal injections. That's led several states to compounding pharmacies, which are not as heavily regulated by the Food and Drug Administration as more conventional pharmacies.

Courts up to the U.S. Supreme Court have ultimately not halted an execution based on a state's refusal to reveal its drug supplier. The secrecy argument also was used ahead of a bungled execution last month in Oklahoma, though that inmate's faulty veins, not the execution drug, were cited as the likely culprit.

Maurie Levin, a prominent capital defense attorney, said Friday that she intended to challenge Abbott's opinion in court as part of ongoing litigation. She said McCraw's letter seemed "very generalized and not supported by any documentation."

"It is hard to accept a decision that is based on that kind of unsupported assertion, particularly when we're talking about matters this important," Levin said.

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Associated Press writers Michael Graczyk in Houston and John L. Mone in Dallas contributed to this report.